Last week, a man was arrested in Scotland for driving home from court having just been disqualified from driving for another driving offence. In this article we look at the law governing the offence of driving whilst disqualified, and examine the consequences of being convicted for this offence.
Driving whilst disqualified: the offence
Under s103 Road Traffic Act 1988 (“RTA 1988”) it is an offence to either (a) drive a motor vehicle on a road; or (b) obtain a driving licence, if either of these activities are done whilst the defendant is disqualified from holding or obtaining a licence.
The prosecution must prove that the offence was committed beyond reasonable doubt. In the context of this offence, this is usually a two stage process.
The first stage requires the prosecution to prove that the defendant was disqualified from driving at the relevant time. Proving that a previous conviction resulting in disqualification exists is usually relatively straightforward – the conviction is most often proven under s73 PACE by producing a certificate of conviction, signed by the clerk of the court.
More problematic is proving that the conviction relates to the person who has been arrested for driving whilst disqualified: defendants frequently argue that the initial conviction relates to an entirely different person. In order to prevent guilty defendants escaping conviction by arguing mistaken identity, the court has adopted a fairly hard line approach: if the name on the conviction matches the name of the defendant, this will create a presumption that they are the same person, beyond reasonable doubt, regardless of how common the name in question is. This means that, if the names match, the prosecution need not produce any further evidence on this point in order to secure a conviction – unless, of course, the defence can provide persuasive (as opposed to spurious) evidence to suggest that the defendant is a different person. In such a case, the prosecution may produce further evidence (such as fingerprints, or testimony from someone who was present in court during the original conviction) to prove that the defendant was previously disqualified.
It is irrelevant if the defendant did not know he was disqualified from driving at the relevant time, or if he mistakenly believed that his disqualification had lapsed: the defendant’s state of mind is irrelevant for the purposes of this offence.
The second stage requires the court to be satisfied that the defendant drove a motor vehicle on a road (or obtained a licence) whilst this disqualification was in force. It should be noted that the vehicle must be driven on a “road” which, according to s108 RTA 1988, covers all forms of public highway. This suggests that driving a motor vehicle whilst disqualified on private property only will not be sufficient to make out the offence. However, it should be noted that if the defendant drives on a road but mistakenly thinks that the road is private property, the offence will be made out regardless of the mistake.
The only defences available to a charge of driving whilst disqualified are those of duress and necessity. Very broadly speaking, duress is available as a defence when the defendant is forced to commit the offence as a result of a threat from a third party. For example, if a drunken man pulled out a loaded gun, pointed it at the defendant’s partner and children, and threatened to shoot them if the defendant did not immediately move his parked car, the defendant may be able to escape a conviction by raising the defence of duress. This is, of course, an extreme example; but it is effective in illustrating the point that the threat must be a real threat, and must be a threat of death or grievous bodily harm.
It should be emphasised that duress and necessity are very complicated legal concepts, and specialist legal advice from one of our Barristers is strongly recommended if you think duress and/or necessity may apply to your case.
The maximum sentence for driving while disqualified is 6 months imprisonment and/or an unlimited fine. The court has discretion to disqualify, but must endorse the offender’s licence with particulars of the offence. The offence also carries 6 penalty points. The appropriate sentencing guideline also suggests that the court can, in addition, extend the period of disqualification by up to 18 months. The guideline also indicates that the court will consider cases where the driver had only recently been disqualified more seriously than other cases.
In addition, if the driver is involved in a collision whilst he is driving whilst disqualified, they could also be found guilty of the specific offence of causing death by driving whilst disqualified (s3ZC RTA 1988), or for causing serious injury by driving whilst disqualified (s3ZD RTA 1988). These offences are similar to those discussed in our previous article concerning driving whilst uninsured or without a licence, and have the effect of making it easier for the prosecution to convict the driver for a more serious offence if he was disqualified at the relevant time than if he was not disqualified.
If you are facing the prospect of a conviction for driving whilst disqualified, please do not hesitate in contacting us for your free consultation. In the recent case of R v C in Grimsby Magistrates Court, Mr C was expecting a further disqualification following a conviction for driving whilst disqualified. However, after hearing the persuasive submissions of his Road Law Barrister, the Court decided to spare Mr C from the disqualification that would have normally followed. Without our assistance, Mr C would likely have been disqualified and would have been unable to work as a result.
The contents of this article should not be relied upon in isolation. Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.
 Pattison v DPP  2 All ER 317
 Derwentside Justices, ex parte Heaviside  RTR 384
 Taylor v Kenyon  2 All ER 726
 R v Miller  2 All ER 974